What would you expect Boal to say in response to Sarver’s claims? You guessed it, Boal denies that the screenplay was based on Sarver. In fact, he told the LA Times that “William James is a fictional character that is the product of my imagination.”
Sarver felt otherwise. He sued the producers and Boal for a violation of the right of publicity, claiming that the movie improperly used his likeness.
The complaint was dismissed per California’s anti-SLAPP statute (Anti-Strategic Lawsuit Against Public Participation) and was appealed to the Ninth Circuit. The Ninth Circuit released its opinion in February 2016.
Before we get to the decision, it is important to know that 15 years ago, the California Supreme Court decided Comedy III v. Saderup — the Three Stooges case. The Three Stooges (Curly, Moe, and Larry) appeared in more than 100 movies over the span of 30 years. It was slapstick humor at its finest. Think Dumb and Dumber in black and white.
Gary Saderup, an artist specializing in charcoal drawings of celebrities, sketched a portrait of the Stooges, which he replicated on t-shirts and sold for a profit. Comedy III, the owner of the Stooges’ names, images, and likenesses, sued Saderup for violation of California’s right of publicity statute.
Saderup claimed that his drawings were protected by the First Amendment. The court stated that the issue is whether the work is “transformative.” The court held that “[w]hen a work contains significant transformative elements, it is … especially worthy of First Amendment protection.” The test is “whether a product containing a celebrity’s likeness is so transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness.”
Now, back to The Hurt Locker and that pesky First Amendment.
Defendants argued that even if Sarver could establish all of the elements of the right of publicity, allowing the claim to go forward would infringe upon the constitutional right to free speech. The Ninth Circuit agreed. It held that “The Hurt Locker is speech that is fully protected by the First Amendment which safeguards the storytellers and artists who take the raw materials of life — including the stories of real individuals, ordinary or extraordinary — and transform them into … movies.”
Transformed is the magic word.
Unlike my son Jack’s transformed army base, Sargent Jeffrey Sarver’s life story has been transformed with far fewer than 200 changes. In Stooges speak, Sarver is “a victim of coicumstance!”
This post originally appeared on abovethelaw.com.
Jon Pfeiffer is an experienced entertainment and copyright trial attorney practicing in Santa Monica. Jon is also an adjunct professor at Pepperdine University in Malibu, California where he teaches Media Law. COM 570 covers First Amendment issues as well as copyright, defamation and privacy.